3712.09
Criminal records check.

(A)
As used in this section:

(1)
"Applicant" means a person who is under final consideration for employment with
a hospice care program or pediatric respite care program in a full-time,
part-time, or temporary position that involves providing direct care to an
older adult or pediatric respite care patient. "Applicant" does not include a
person who provides direct care as a volunteer without receiving or expecting
to receive any form of remuneration other than reimbursement for actual
expenses.

(2)
"Criminal
records check" has the same meaning as in section 109.572 of the Revised
Code.

(3)
"Older
adult" means a person age sixty or older.

(B)

(1)
Except as provided in division (I) of this section, the chief administrator of
a hospice care program or pediatric respite care program shall request that the
superintendent of the bureau of criminal identification and investigation
conduct a criminal records check of each applicant. If an applicant for whom a
criminal records check request is required under this division does not present
proof of having been a resident of this state for the five-year period
immediately prior to the date the criminal records check is requested or
provide evidence that within that five-year period the superintendent has
requested information about the applicant from the federal bureau of
investigation in a criminal records check, the chief administrator shall
request that the superintendent obtain information from the federal bureau of
investigation as part of the criminal records check of the applicant. Even if
an applicant for whom a criminal records check request is required under this
division presents proof of having been a resident of this state for the
five-year period, the chief administrator may request that the superintendent
include information from the federal bureau of investigation in the criminal
records check.

(2)
A person required by division (B)(1) of this
section to request a criminal records check shall do both of the following:

(a)
Provide to each applicant for whom a criminal records check request is required
under that division a copy of the form prescribed pursuant to division (C)(1)
of section 109.572 of the Revised Code and a standard fingerprint impression
sheet prescribed pursuant to division (C)(2) of that section, and obtain the
completed form and impression sheet from the applicant;

(b)
Forward the completed form and impression sheet to the superintendent of the
bureau of criminal identification and investigation.

(3)
An applicant provided the form and fingerprint impression sheet under division
(B)(2)(a) of this section who fails to complete the form or provide fingerprint
impressions shall not be employed in any position for which a criminal records
check is required by this section.

(C)

(1)
Except as provided in rules adopted by the director of health in accordance
with division (F) of this section and subject to division (C)(2) of this
section, no hospice care program or pediatric respite care program shall employ
a person in a position that involves providing direct care to an older adult or
pediatric respite care patient if the person has been convicted of or pleaded
guilty to any of the following:

(b)
A violation of an existing or former law of this state, any other state, or the
United States that is substantially equivalent to any of the offenses listed in
division (C)(1)(a) of this section.

(2)

(a)
A hospice care program or pediatric respite care program may employ
conditionally an applicant for whom a criminal records check request is
required under division (B) of this section prior to obtaining the results of a
criminal records check regarding the individual, provided that the program
shall request a criminal records check regarding the individual in accordance
with division (B)(1) of this section not later than five business days after
the individual begins conditional employment. In the circumstances described in
division (I)(2) of this section, a hospice care program or pediatric respite
care program may employ conditionally an applicant who has been referred to the
hospice care program or pediatric respite care program by an employment service
that supplies full-time, part-time, or temporary staff for positions involving
the direct care of older adults or pediatric respite care patients and for
whom, pursuant to that division, a criminal records check is not required under
division (B) of this section.

(b)
A hospice care program or pediatric respite care program that employs an
individual conditionally under authority of division (C)(2)(a) of this section
shall terminate the individual's employment if the results of the criminal
records check requested under division (B) of this section or described in
division (I)(2) of this section, other than the results of any request for
information from the federal bureau of investigation, are not obtained within
the period ending thirty days after the date the request is made. Regardless of
when the results of the criminal records check are obtained, if the results
indicate that the individual has been convicted of or pleaded guilty to any of
the offenses listed or described in division (C)(1) of this section, the
program shall terminate the individual's employment unless the program chooses
to employ the individual pursuant to division (F) of this section. Termination
of employment under this division shall be considered just cause for discharge
for purposes of division (D)(2) of section 4141.29 of the Revised Code if the
individual makes any attempt to deceive the program about the individual's
criminal record.

(D)

(1)
Each hospice care program or pediatric respite care program shall pay to the
bureau of criminal identification and investigation the fee prescribed pursuant
to division (C)(3) of section 109.572 of the Revised Code for each criminal
records check conducted pursuant to a request made under division (B) of this
section.

(2)
A hospice care program or pediatric respite care
program may charge an applicant a fee not exceeding the amount the program pays
under division (D)(1) of this section. A program may collect a fee only if both
of the following apply:

(a)
The
program notifies the person at the time of initial application for employment
of the amount of the fee and that, unless the fee is paid, the person will not
be considered for employment;

(b)
The medicaid program does not reimburse the program the fee it pays under division
(D)(1) of this section.

(E)
The report of a criminal records check conducted pursuant to a request made
under this section is not a public record for the purposes of section 149.43 of
the Revised Code and shall not be made available to any person other than the
following:

(1)
The
individual who is the subject of the criminal records check or the individual's
representative;

(2)
The chief
administrator of the program requesting the criminal records check or the
administrator's representative;

(3)
The administrator of any other facility, agency, or program that provides
direct care to older adults or pediatric respite care patients that is owned or
operated by the same entity that owns or operates the hospice care program or
pediatric respite care program;

(4)
A court, hearing officer, or other necessary individual involved in a case
dealing with a denial of employment of the applicant or dealing with employment
or unemployment benefits of the applicant;

(5)
Any person to whom the report is provided pursuant to, and in accordance with,
division (I)(1) or (2) of this section.

(F)
The director of health shall adopt rules in accordance with Chapter 119. of the
Revised Code to implement this section. The rules shall specify circumstances
under which a hospice care program or pediatric respite care program may employ
a person who has been convicted of or pleaded guilty to an offense listed or
described in division (C)(1) of this section but meets personal character
standards set by the director.

(G)
The chief administrator of a hospice care program or pediatric respite care
program shall inform each individual, at the time of initial application for a
position that involves providing direct care to an older adult or pediatric
respite care patient, that the individual is required to provide a set of
fingerprint impressions and that a criminal records check is required to be
conducted if the individual comes under final consideration for
employment.

(H)
In a tort or other civil action for damages that
is brought as the result of an injury, death, or loss to person or property
caused by an individual who a hospice care program or pediatric respite care
program employs in a position that involves providing direct care to older
adults or pediatric respite care patients, all of the following shall apply:

(1)
If the program employed the individual in good faith and reasonable reliance on
the report of a criminal records check requested under this section, the
program shall not be found negligent solely because of its reliance on the
report, even if the information in the report is determined later to have been
incomplete or inaccurate;

(2)
If the program employed the individual in good faith on a conditional basis
pursuant to division (C)(2) of this section, the program shall not be found
negligent solely because it employed the individual prior to receiving the
report of a criminal records check requested under this section;

(3)
If the program in good faith employed the individual according to the personal
character standards established in rules adopted under division (F) of this
section, the program shall not be found negligent solely because the individual
prior to being employed had been convicted of or pleaded guilty to an offense
listed or described in division (C)(1) of this section.

(I)

(1)
The chief administrator of a hospice care program or pediatric respite care
program is not required to request that the superintendent of the bureau of
criminal identification and investigation conduct a criminal records check of
an applicant if the applicant has been referred to the program by an employment
service that supplies full-time, part-time, or temporary staff for positions
involving the direct care of older adults or pediatric respite care patients
and both of the following apply:

(a)
The chief administrator receives from the employment service or the applicant a
report of the results of a criminal records check regarding the applicant that
has been conducted by the superintendent within the one-year period immediately
preceding the applicant's referral;

(b)
The report of the criminal records check demonstrates that the person has not
been convicted of or pleaded guilty to an offense listed or described in
division (C)(1) of this section, or the report demonstrates that the person has
been convicted of or pleaded guilty to one or more of those offenses, but the
hospice care program or pediatric respite care program chooses to employ the
individual pursuant to division (F) of this section.

(2)
The chief administrator of a hospice care program or pediatric respite care
program is not required to request that the superintendent of the bureau of
criminal identification and investigation conduct a criminal records check of
an applicant and may employ the applicant conditionally as described in this
division, if the applicant has been referred to the program by an employment
service that supplies full-time, part-time, or temporary staff for positions
involving the direct care of older adults or pediatric respite care patients
and if the chief administrator receives from the employment service or the
applicant a letter from the employment service that is on the letterhead of the
employment service, dated, and signed by a supervisor or another designated
official of the employment service and that states that the employment service
has requested the superintendent to conduct a criminal records check regarding
the applicant, that the requested criminal records check will include a
determination of whether the applicant has been convicted of or pleaded guilty
to any offense listed or described in division (C)(1) of this section, that, as
of the date set forth on the letter, the employment service had not received
the results of the criminal records check, and that, when the employment
service receives the results of the criminal records check, it promptly will
send a copy of the results to the hospice care program or pediatric respite
care program. If a hospice care program or pediatric respite care program
employs an applicant conditionally in accordance with this division, the
employment service, upon its receipt of the results of the criminal records
check, promptly shall send a copy of the results to the hospice care program or
pediatric respite care program, and division (C)(2)(b) of this section applies
regarding the conditional employment.